Protecting the right to work

Talk to anyone in state government and they’ll confirm that Mississippi is in a high-stakes competition to attract jobs and talent. A strength of our federal system of government is that it encourages states to compete with — and learn from — each other. We can’t stop innovating and improving or we will fall behind. One of the lessons of the last few years is that labor freedom matters. For many decades, Mississippi has encouraged labor freedom by supporting the right to work.

We have lost that edge. Today, we are one of the most regulated states in terms of labor. This is not because of unions, but because so many occupations in Mississippi require a person to be licensed before they can work. Obtaining such a license can be a time-consuming, complicated, expensive process.

Often when people use the phrase “right to work,” they mean that employees cannot be forced to join or pay for a union. Mississippi guaranteed the “right to work” in 1954, becoming the 15th state to do so. Today, there are 28 right-to-work states. Right to work is a great policy for recruiting companies to Mississippi. But as more states reject forced unionization, we need a new tool to stand out from the pack. We need a new tool to revitalize homegrown entrepreneurship and prosperity.

Only 56 percent of Mississippi adults are working — the second-lowest labor participation rate in the country. Could occupational licensing be playing a role in discouraging work? According to the Institute for Justice, we license 55 of 102 low-to-middle-income occupations — fifth worst in the country. Consider that Mississippi is one of only 9 states to license residential drywall installers and a host of other construction-related professions, ranging from terrazzo contractors to landscape workers. Economists estimate licensing requirements increase prices by as much as 18 percent. On a $100,000 home that translates into $18,000 in additional costs.

Nationwide, the burden of occupational licensing has exploded from covering 5 percent of the work force in the 1950s to nearly 30 percent today, according to a 2015 report from the Obama Administration. In many ways, we have replaced unions with occupational licensing boards. These boards determine who can work in a chosen field and require workers to pay a licensing fee so that they can work. Imagine, in a state where there are not enough jobs and not enough people working, we require individuals in numerous professions to pay a fee for the “privilege” to work.

The opportunity to work is not a privilege, it is a right. This basic principle explains a recent Supreme Court decision, NC Dental Board v. FTC, which ruled that occupational licensing boards that “restrain trade” can be sued under antitrust law. Until that ruling, these boards were protected from lawsuits by the doctrine of sovereign immunity.

The rationale for occupational licensing is to protect consumer safety. But all too often, observed the Court, licensing protects monopolies – whether it be dentists who want to dominate the teeth-whitening trade or cosmetologists who want to control hair braiding.

HB 1425, a bill pending in the legislature, would require some two dozen of the state’s occupational licensing boards to use “the least restrictive regulation necessary to protect consumers from present, significant and substantiated harms that threaten public health and safety.” These boards are stacked with what the Supreme Court calls “active market participants,” and so no longer enjoy state antitrust legal immunity. The remedy, says the Court, is to place the boards under the “active supervision” of the state. HB 1425 does this by authorizing elected officials to actively supervise the boards.

The right to work is not a legal construct or a marketing gimmick. Productive work aimed at sharing one’s gifts with others — whether it be making cabinets or repairing doors or installing drywall (trades licensed in Mississippi but not in some other states) — is a fundamental human activity that helps us become who we were made to be. Mississippi lawmakers should side with the Supreme Court in letting people work in their chosen profession without having to get the permission of their competitors.

Dr. Jameson Taylor is vice president for policy at the Mississippi Center for Public Policy and can be reached at taylor@mspolicy.org by email.

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(1) comment

Outstanding article Dr. Taylor. What you're describing is the at the heart of the "good ole' boy and good ole' girl system in Mississippi. Nobody in the executive branch (and others) is looking to hold board members accountable.....they're way too busy trying to get their friends on those board that are willing to "play ball" and look the other way. It's the Southern esoteric version of La Cosa Nostra (i.e. "our thing") and it is corrupt to the bone, and unfortunately a great deal of it leads back to the University of Mississippi. Connect the dots folks, from the Governor on down.....

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